HammondCare
[2024] FWC 2975
•28 OCTOBER 2024
| [2024] FWC 2975 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.318 - Application for an order relating to instruments covering new employer and transferring employees
HammondCare
(AG2024/4116)
| Aged care industry | |
| COMMISSIONER CRAWFORD | SYDNEY, 28 OCTOBER 2024 |
Application for orders relating to instruments covering new employer and transferring employees – orders made.
BACKGROUND
An application has been made by HammondCare to the Fair Work Commission (Commission) for orders pursuant to s.318 of the Fair Work Act 2009 (FW Act).
HammondCare is a Christian not-for-profit organisation providing residential, in-home, and specialist dementia aged care services in New South Wales, Victoria, Queensland, South Australia and the Australian Capital Territory.
The HammondCare Aged Care Enterprise Agreement 2023[1] (HC Agreement) applies to HammondCare and its employees working in direct care roles. The HC Agreement was approved by the Commission on 28 November 2023 and has a nominal expiry date of 30 June 2026.
Anglicare Community Services trading as Anglicare (Anglicare) is a not-for-profit organisation providing retirement living, residential aged care, in-home aged care, and community services.
On around 25 September 2024, HammondCare and Anglicare entered a contract for the sale of the provision of home care services in the Southern Highlands Aged Care Planning Region of New South Wales from Anglicare to HammondCare. The sale will come into effect on 28 October 2024. Assets including Anglicare’s list of clients will transfer as part of the sale.
Anglicare currently has five employees providing services in the area covered by the sale. Anglicare and these employees are covered by the Anglican Community Services Enterprise Agreement 2017[2] (Anglicare Agreement). HammondCare has made employment offers to all five Anglicare employees and these offers have now been accepted by each employee.[3]
HammondCare seeks orders that the HC Agreement will cover employees that transfer from employment with Anglicare to employment with HammondCare (Transferring Employees) and orders that the Anglicare Agreement will not cover the Transferring Employees.
The application was supported by an affidavit sworn by Lyden Lemsing (Head of Employee Relations for HammondCare). The affidavit had documents attached which confirm HammondCare has made offers of employment to the Transferring Employees and that HammondCare has provided the Transferring Employees with a comparison of the conditions in the Anglicare Agreement and the HammondCare Agreement. The affidavit confirms HammondCare has agreed to continue paying the Transferring Employees at the rate they were being paid under the Anglicare Agreement, if that rate is higher than the rate they would be entitled to under the HC Agreement.
The Australian Nursing and Midwifery Federation (ANMF) and the Health Services Union (HSU) are covered by the Anglicare Agreement. On 22 October 2024 an email was sent from my chambers to both the ANMF and the HSU seeking confirmation as to whether or not the application was opposed. The HSU has confirmed it does not oppose the orders sought by HammondCare. The ANMF did not respond to the Commission’s email.
Given Ms Lemsing’s affidavit, I am satisfied the affected employees are aware of the application and none have indicated they wish to be heard in relation to the application.
I am satisfied that it is appropriate to deal with the application on the papers.
LEGISLATION
The relevant provisions in the FW Act are:
“318 Orders relating to instruments covering new employer and transferring employees
Orders that the FWC may make
(1) The FWC may make the following orders:
(a) an order that a transferable instrument that would, or would be likely to, cover the new employer and a transferring employee because of paragraph 313(1)(a) does not, or will not, cover the new employer and the transferring employee;
(b) an order that an enterprise agreement or a named employer award that covers the new employer covers, or will cover, the transferring employee.
Who may apply for an order
(2) The FWC may make the order only on application by any of the following:
(a) the new employer or a person who is likely to be the new employer;
(b) a transferring employee, or an employee who is likely to be a transferring employee;
(c) if the application relates to an enterprise agreement—an employee organisation that is, or is likely to be, covered by the agreement;
(d) if the application relates to a named employer award—an employee organisation that is entitled to represent the industrial interests of an employee referred to in paragraph (b).
Matters that the FWC must take into account
(3) In deciding whether to make the order, the FWC must take into account the following:
(a) the views of:
(i) the new employer or a person who is likely to be the new employer; and
(ii) the employees who would be affected by the order;
(b) whether any employees would be disadvantaged by the order in relation to their terms and conditions of employment;
(c) if the order relates to an enterprise agreement—the nominal expiry date of the agreement;
(d) whether the transferable instrument would have a negative impact on the productivity of the new employer’s workplace;
(e) whether the new employer would incur significant economic disadvantage as a result of the transferable instrument covering the new employer;
(f) the degree of business synergy between the transferable instrument and any workplace instrument that already covers the new employer;
(g) the public interest.
Restriction on when order may come into operation
(4) The order must not come into operation in relation to a particular transferring employee before the later of the following:
(a) the time when the transferring employee becomes employed by the new employer;
(b) the day on which the order is made.”
CONSIDERATION
Transfer of business
Section 311 of the FW Act sets out when a transfer of business will be taken to have occurred. I am satisfied it is likely that there will be a transfer of business within the meaning of s.311(1) of the FW Act based on Ms Lemsing’s affidavit which confirms there is a contract which provides for the sale of assets from Anglicare to HammondCare.
Transferable instrument
Section 312 of the FW Act details instruments that may transfer:
“312 Instruments that may transfer
Meaning of transferable instrument
(1) Each of the following is a transferable instrument:
(a) an enterprise agreement that has been approved by the FWC;
(b) a workplace determination;
(c) a named employer award.
…”
The Anglicare Agreement was approved by the Commission on 28 March 2018. It is a transferrable instrument within the meaning of s.312(1) of the FW Act.
Who may apply for an order?
The application has been made by HammondCare, the new employer of the Transferring Employees. The requirement under s.318(2) of the FW Act has therefore been met.
Section 318(3) – Matters that the FWC must take into account
Section 318(3)(a) – the views of the new employer and the employees who would be affected by the order
Section 318(3)(a)(i) – the views of the new employer
HammondCare clearly supports the making of the orders sought.
Section 318(3)(a)(ii) – the views of the employees
I am satisfied based on Ms Lemsing’s affidavit that the relevant employees either support the application or do not oppose the application.
The views of HammondCare and the employees weigh in favour of making the orders.
Section 318(3)(b) – whether any employees would be disadvantaged by the order in relation to their terms and conditions of employment
I am satisfied based on a comparison of the Anglicare Agreement and the HC Agreement and the material filed by HammondCare that employees will not be disadvantaged by the orders. This factor weighs in favour of making the orders.
Section 318(3)(c) – if the order relates to an enterprise agreement—the nominal expiry date of the agreement
The Anglicare Agreement nominally expired on 30 June 2020. The HC Agreement is within its nominal term and does not nominally expire until 30 June 2026. I consider these dates weigh in favour of making the orders because the result will be the Transferring Employees being covered by a more contemporaneous instrument.
Section 318(3)(d) – whether the transferable instrument would have a negative impact on the productivity of the new employer’s workplace
I accept there will be a minimal negative impact on productivity if HammondCare’s administrative employees have to apply the terms of the Anglicare Agreement to the Transferring Employees in circumstances where HammondCare has in excess of 1,000 employees performing work under the HC Agreement. This factor weighs in favour of making the orders.
Section 318(3)(e) – whether the new employer would incur significant economic disadvantage as a result of the transferable instrument covering the new employer
I accept there will be a minimal amount of economic disadvantage for HammondCare if it is required to implement administrative arrangements to apply the Anglicare Agreement to the Transferring Employees. However, I do not consider this constitutes “significant economic disadvantage”. I consider this is a neutral factor.
Section 318(3)(f) – the degree of business synergy between the transferable instrument and any workplace instrument that already covers the new employer
I do not consider business synergy is going to be impacted by which industrial instrument applies to the small number of Transferring Employees. I consider this to be a neutral factor.
Section 318(3)(g) – the public interest
I am satisfied it is in the public interest to make the orders sought. The orders will generate operational benefits for HammondCare in relation to its important aged care work. The orders will also result in improved employment conditions for the Transferring Employees. This factor weighs in favour of making the orders.
Conclusion
Having considered the matters above, while there are two neutral considerations, it is apparent that all other matters weigh towards the granting of the application. Taking into account each of the matters set out in s.318(3) of the FW Act, I am satisfied that the orders as sought should be granted. The orders will be issued concurrently with this decision.
The orders will come into operation on 28 October 2024 or the date that the relevant Transferring Employee commences employment with HammondCare, whichever date is the later.
COMMISSIONER
Determined on the papers.
[1] AE522498.
[2] AE427795.
[3] This was confirmed by HammondCare in an email to the Commission dated 25 October 2024.
Printed by authority of the Commonwealth Government Printer
<AE427795 PR780635>
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